Tuesday, July 14, 2009
Robert Freeman's 1993 Letter on Open Records For NY Court Administration and Public Administrator
Manhattan Surrogate Court Judge Renee R. Roth (Of Counsel to the lawfirm of McLaughlin and Stern) never had a court reporter or a tape recording of any of her court proceedings...except when I was in the courtroom. I always had a court reporter after I had heart failure in July, 2006, yet no one else ever seems concerned that the proceedings were never documented.
In 1993 an advisory opinion by Robert Freeman, Chair of the Committee on Open Government, was posted on the internet:
STATE OF NEW YORK
DEPARTMENT OF STATE
COMMITTEE ON OPEN GOVERNMENT
One Commerce Plaza May 18, 1993
99 Washington Ave.
Albany, New York 12231
Fax (518) 474-1927
Mr. G. Allen Randolph
Ms. Jere Williamson
Columbia University in the City
of New York
Graduate School of Journalism
New York, NY 10027
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence, except as otherwise indicated.
Dear Mr. Randolph and Ms. Williamson:
As you are aware, I have received your letter of April 2.
In brief, according to your letter and the correspondence attached to it, you requested records from the Office of the New York County Public Administrator but received no response. Due to the failure to respond, you submitted an appeal to the Office of the New York City Corporation Counsel. However, you wrote that "some sectors believe the Public Administrator is a New York City agency", while others "believe it is under the auspices of the State of New York". You have asked where, in my view, an appeal should be filed, and you seek any additional input that I might provide.
In this regard, in an effort to assist you, I have engaged in telephone conversations involving New York City, New York State and Surrogate's Court officials. As you know, Public Administrators are appointed by the Surrogate in their respective counties, and their salaries are paid by New York City (see Surrogate's Court Procedure Act, §§1102, 1108). Further, §1110(1) of the Surrogate's Court Procedure Act states that:
"The City of New York shall be answerable for the faithful execution by the public
administrator of all the duties of his office and for the application by him of all moneys and property received by him and for all moneys and securities and the interest, earnings and dividends actually received by him or which he should have collected or received."
Nevertheless, a representative of the Office of Corporation Counsel expressed the opinion that the Office of Public Administrator is not a City agency, for the City government has no general authority to oversee the operations of the Public Administrator or compel the Public Administrator to carry out his or her duties.
Similarly, it was advised that Corporation Counsel has no jurisdiction over the Public Administrator concerning the implementation of the Freedom of Information Law. Having discussed the matter with an attorney for the Office of Court Administration, it was contended that the Office of Public Administrator is something of a hybrid, and that it is not an extension or an arm of that agency.
Based upon a review of the law and the discussions described earlier, in my opinion, the Office of Public Administrator is not clearly an agency of either New York City or New York State, but rather is sui generis, a unique entity unto itself. Moreover, I believe that it is an "agency" with an independent responsibility to give effect to the Freedom of Information Law.
The Freedom of Information Law applies to agency records, and §86(3) of that statute defines the term "agency" to include:
"any state or municipal department, board, bureau, division, commission, committee,
public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."
In turn, §86(1) defines "judiciary" to mean:
"the courts of the state, including any municipal or district court, whether or not of record."
As such, the courts are not subject to the Freedom of Information Law. By means of analogy, however, I point out that it has been held that the Office of Court Administration is an "agency" required to comply with the Freedom of Information Law. The initial decision on the subject, which cited an advisory opinion prepared by this office, included the following discussion of the matter:
"The court must look to the intent of the legislature to determine whether the Office of Court Administration, in the exercise of a purely administrative and personnel function,is to be excluded from the applicable provisions of the Freedom of Information Law. Public Officers Law §84 states in part 'The people's right to know the process of governmental decisionmaking and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.'
"In view of the legislative purpose to promote open government, the court is inclined to construe narrowly any section that would tend to exclude offices of government from the law. Public Officers Law §86 specifically refer to courts when it defines 'Judiciary.' The legislature did not include the administrative arm of the court. The Office of Court Administration does not exercise a judicial function, conduct civil or criminal trials, or determine pre-trial motions. Respondent is not a 'court.'"
It is significant to note that respondent refers to several sections of the Judiciary
Law that regulate access to judicial records and allegedly perform a function similar to that of the Freedom of Information Law. None of the sections specified would address access to the information sought by petitioner pertaining to personnel and salaries exclusively.
"Accordingly, the court rejects respondent's contention that it is in all respects exempt from the provisions of the Freedom of Information Law." [Babigian v. Evans, 427 NYS 2d 688, 689 (1980) aff'd 97 Ad 2d 992 (1983); Quirk v. Evans, 455 NYS 2d 918, 97 Ad 2d 992 (1983)].
Like the Office of Court Administration, which administers the court system and is an agency subject to the Freedom of Information Law, the Office of Public Administrator, as its title suggests, performs administrative functions relative to Surrogates' Courts in New York City. Further, the information sought would not constitute court records or pertain to judicial proceedings; on the contrary, it pertains to records involving administrative functions.
Assuming that the Office of Public Administrator is an agency subject to the Freedom of Information Law, it would be required to carry out its duties in accordance with certain procedural rules and regulations. By way of background, §89(1)(b)(iii) of the Freedom of Information Law requires the Committee on Open Government to promulgate regulations concerning the procedural aspects of the Law (see 21 NYCRR Part 1401). In turn, §87(1) of the Law requires each agency to promulgate rules and regulations consistent with the Law and the Committee's regulations. The initial responsibility to deal with requests is borne by an agency's records access officer, and the Committee's regulations provide direction concerning the designation and duties of a records access officer. Specifically, §1401.2 of the regulations provides in relevant part that:
"(a) The governing body of a public corporation and the head of an executive agency or governing body of other agencies shall be responsible for insuring compliance with the regulations herein, and shall designate one or more persons as records access officer by name or by specific job title and business address, who shall have the duty of coordinating agency response to public requests for access to records. The designation of one or more records access officers shall not be construed to prohibit officials who have in the past been authorized to make records or information available to the public from continuing to do so."
Section 1401.2(b) of the regulations describes the duties of a records access officer, including the duty to coordinate the agency's response to requests.
In addition, §1401.7 of the Committee's regulations provide in part that:
"(a) The governing body of a public corporation or the head, chief executive or governing body of other agencies shall hear appeals or shall designate a person or body to hear appeals regarding denial of access to records under the Freedom of Information Law.
(b) Denial of access shall be in writing stating the reason therefore and advising the person denied access of his or her right to appeal to the person or body established to hear appeals, and that person or body shall be identified by name, title, business address and business telephone number. The records access officer shall not be the appeals officer."
I point out, too, that the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests and appeals. Specifically, §89(3) of the Freedom of Information Law states in part that:
"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied..."
If neither a response to a request nor an acknowledgement of the receipt of a request is given within five business days, or if an agency delays responding for an unreasonable time after it acknowledges that a request has been received, a request may, in my opinion, be considered to have been constructively denied. In such a circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom of Information Law. That provision states in relevant part that:
"any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business
days of the receipt of such appeal fully explain in writing to the person requesting
the record the reasons for further denial, or provide access to the record sought."
In addition, it has been held that when an appeal is made but a determination is not rendered within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of Information Law, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v. McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].
In sum, as the head of an agency subject to the Freedom of Information Law, the Public Administrator is in my opinion required to promulgate rules for the procedural implementation of that statute, which would include the designation of a records access officer, as well as an appeals officer. The appeals officer would be the Public Administrator or a person designated to determine appeals by the Public Administrator.
With respect to rights of access, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in section 87(2)(a) through (i) of the Law. The records that you requested involved those reflective of the "identity of any consultant or consultants and vendor or vendors who provided computer consultation services or equipment to the Office of the Public Administrator, County of New York in the years 1989 through 1993." In my opinion, insofar as the records sought are maintained by the Office of Public Administrator and can be found, they would be available. In short, none of the grounds for denial could properly be asserted to withhold the kinds of records that fall within the scope of your request, such as contracts, bills, vouchers, purchase orders and the like.
Moreover, although you may be students or non-residents, those factors are irrelevant to your rights under the Freedom of Information Law as members of the public. When records are available under the Freedom of Information Law, it has been held that they must be made equally available to any person, without regard to status or interest [see M. Farbman & Sons v. New York City Health & Hosps. Corp., 62 NY 2d 75 (1984); Burke v. Yudelson, 51 AD 2d 673 (1976)].
Finally, it is emphasized that the courts have consistently interpreted the Freedom of Information Law in a manner that fosters maximum access. As stated by the Court of Appeals more than decade ago:
"To be sure, the balance is presumptively struck in favor of disclosure, but in eight
specific, narrowly constructed instances where the governmental agency convincingly
demonstrates its need, disclosure will not be ordered (Public Officers Law, section 87, subd 2). Thus, the agency does not have carte blanche to withhold any information it pleases. Rather, it is required to articulate particularized and specific justification and,if necessary, submit the requested materials to the courts for in camera inspection, to exempt its records from disclosure (see Church of Scientology of N.Y. v. State of New York, 46 NY 2d 906, 908). Only where the material requested falls squarely within the ambit of one of these statutory exemptions may disclosure be withheld" [Fink v. Lefkowitz, 47 NY 2d 567, 571(1979)]."
In another decision rendered by the Court of Appeals, it was held that:
"Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access" [Capital Newspapers v. Burns, 67 NY 2d 562, 566 (1986); see also, Farbman & Sons v. New York City, 62 NY 2d 75, 80 (1984); and Fink v. Lefkowitz, 47 NY 2d 567, 571 (1979)].
In the same decision, in a statement regarding the intent and utility of the Freedom of Information Law, it was found that:
"The Freedom of Information Law expresses this State's strong commitment to open government and public accountability and imposes a broad standard of disclosure upon the State and its agencies (see, Matter of Farbman & Sons v New York City Health and Hosps. Corp., 62 NY 2d 75, 79). The statute, enacted in furtherance of the public's vested and inherent 'right to know', affords all citizens the means to obtain information concerning the day-to-day functioning of State and local government thus providing the electorate with sufficient information 'to make intelligent, informed choices with respect to both the direction and scope of governmental activities' and with an effective tool for exposing waste, negligence and abuse on the part of government officers" (id., 565-566).
In an effort to enhance compliance with and understanding of the Freedom of Information Law, copies of this opinion will be forwarded to the Public Administrator, as well as others. I hope that I have been of some assistance. Should any further questions arise, please feel free to contact me.
Robert J. Freeman
cc: Ethel J. Griffin, Public Adminstrator
Hon. Renee R. Roth, Surrogate
Steven Gulden, Assistant Corporation Counsel
Clarence Orsland, Assistant Corporation Counsel
Nora Anderson (pictured above) was elected to the position vacated by Renee Roth on December 31, 2008 due to age. Ms. Anderson was suspended WITH PAY by the First Department while she is investigated for fraud.